CARSON CITY, Nev. (CN) – In a split decision, the Nevada Supreme Court ruled that Nevada voters can’t recall elected state and local judges because a commission has the exclusive power to remove them from the bench.
The court for the first time considered whether a provision in the Nevada Constitution empowering voters to recall “public officers” in the state applies to judges.
In the 4-2 decision issued Thursday, the court majority ruled that judges are indeed public officers within the recall provision, similar to other states. But the majority concluded that the creation of the state’s Commission on Judicial Discipline, vested with the power to remove judges, supersedes voter recall.
Justice James Hardesty, author of the majority opinion, wrote that “the voters’ subsequent approval of the system for judicial discipline, which plainly grants the commission the exclusive authority to remove a judge from office with only one exception, the legislative power of impeachment, supersedes any provision that would allow for judges to be recalled by other means.”
Justices Michael Cherry, Ron Parraguirre and Mark Gibbons concurred with Hardesty, while Justices Kristina Pickering and Michael Douglas dissented. Newly named Justice Lidia Stiglich did not participate.
Nevada voters approved the establishment of the discipline commission in 1976 through an amendment to the state Constitution. The amendment provides that judges – in addition to being impeached by the Legislature – may be removed or otherwise disciplined by the commission.
Because the amendment leaves out any references to a recall, it “must be read as the exclusive means of judicial removal except for legislative impeachment,“ Hardesty wrote for the majority.
In the concluding paragraph, he stated that the drafters of the amendment and the voters who approved it “intended that recall no longer be an available means of removing a judge from office.”
Hardesty also referred to the ballot materials, legislative history and public-policy concerns behind the amendment creating the commission. Those items, he wrote, “highlight the importance of insulating the judicial branch from political influences, a prerogative that cannot be accomplished if voter recall of judicial officers” is still allowed.
The decision reversed a lower-court ruling in the case of Catherine Ramsey, a municipal judge for the city of North Las Vegas who challenged the legality of an election to recall her. A group backing the recall claimed Ramsey improperly used city assets for personal use, was excessively absent from work and mistreated staff and others in her courtroom.
A judge denied Ramsey’s challenge, ruling that judges were subject to recall.
In her dissenting opinion, Justice Pickering criticized the majority for revising the state Constitution to exempt themselves and the rest of the Nevada judiciary from the right of recall, calling it a dangerous interpretive precedent.
“The conflict the majority contrives between citizen recall and commission discipline is just that: contrived,” she wrote. “Nothing – not text, context, history, the ballot materials the voter received, or the pronouncements of this court and Nevada’s lead constitutional scholars – supports that our citizens gave up the right to recall judges when they approved the creation of the Judicial Discipline Commission.”
Recall and commission discipline can and do coexist in Nevada’s Constitution and in constitutions of other states, she wrote.